Relates to discipline for inappropriate sexual conduct.
Sponsor: SALAND / Committee: EDUCATION
Law Section: Education Law / Law: Amd S3020-a, Ed L
Sponsor: SALAND / Committee: EDUCATION
Law Section: Education Law / Law: Amd S3020-a, Ed L
- May 29, 2012: REFERRED TO EDUCATION
BILL NUMBER:S7497 TITLE OF BILL: An act to amend the education law, in relation to discipline for inappropriate sexual conduct SUMMARY OF PROVISIONS: Section 2 of the bill would amend subdivision 2 of � 3020-a of the Education Law to require any charges involving inappropriate sexual conduct be specified when the employing board submits its written statement to the employee affirming its intent to pursue disciplinary charges. Section 3 of the bill would amend subdivision 2 of �3020-a of the Education Law to provide that an employee may be suspended without pay, if a hearing officer finds probable cause that the employee has engaged in inappropriate sexual conduct. Section 4 of the bill would amend subdivision 2 of � 3020-a of the Education Law to provide that the employing board may request a probable cause hearing, when the employee is charged with a criminal complaint or indictment under Article 130 of the Penal Law against a student or minor, or where the employee has been charged with inappropriate sexual conduct. These hearings shall take place within take place within fifteen days of the filing of the criminal complaint or indictment or ten days of the employee's request for a 3020-a hearing. If the employing board meets the burden of establishing probable cause, the employee shall remain suspended without pay during the pendency of the disciplinary action. Section 5 of the bill would amend subdivisions 4 and 5 of � 3020-a of the Education Law to provide for post hearing procedures of employees' charged with inappropriate sexual conduct. Hearing officers must issue a ruling on all charges within thirty days of the last day of the final hearing. Following the hearing officer's ruling the employing board shall then render a written decision, adopting, modifying or rejecting the hearing officer's decision in whole or in part. In cases where a penalty is imposed for inappropriate sexual conduct, the penalty shall be termination unless the employing board identifies, in writing, specific reasons for imposing a lesser penalty. The employee may then appeal the employing board's decision to the New York State Supreme Court pursuant to Article 78 of Civil Practice Law. Section 6 of the bill adds a new subdivision 6 to � 3020-a of the Education Law to provide for the definition of inappropriate sexual conduct. REASONS FOR SUPPORT: This legislation would give school districts the authority to dismiss teachers and principals who have engaged in acts of sexual inappropriate conduct against students or minors, while providing appropriate due process. Under the current law, outside hearing officers, or arbitrators, make binding determinations and impose penalties, including whether or not to terminate employees, which school districts must follow. This legislation will give districts - and in New York City, the Schools Chancellor - the authority to make personnel decisions after disciplinary proceedings in these cases. Specifically, the proposal amends New York State Education Law 3020-a so that the determinations are submitted to school districts for review, but provides districts the final say on what disciplinary action to take in cases involving inappropriate sexual conduct. Consistent with the City's collective bargaining agreement with the United Federation of Teachers (UFT), this legislation also provides that an employee may be suspended without pay, if a hearing officer finds probable cause that the employee has committed inappropriate sexual conduct. This approach is consistent with due process and disciplinary proceedings for nearly all other City employees. Tenured employees will retain the right to file an appeal with New York State Supreme Court pursuant to Article 78 of the State Civil Practice Law. If the Court rules against the school district, the employee must be reimbursed at reasonable costs and the charges must be expunged from their employment record. For most City agencies, if an investigation finds that an employee has engaged in serious misconduct, the commissioner can bring a case against the employee before the Office of Administrative Trials and Hearings (OATH). An administrative law judge will hear the case, and if the judge finds that the employee engaged in misconduct, the judge issues a recommendation to the commissioner. Then it is up to the commissioner to make the final determination. This same process should be extended to school employees who commit acts of sexual misconduct as well. Currently, for school districts, hearing officers must be jointly chosen, by the school district and collective bargaining unit. If the ruling disappoints one party, they can be removed for future cases. This results in decisions that aim to please both sides, leading to unacceptable rulings and penalties. Rather than terminating teachers who commit acts of inappropriate sexual conduct, hearing officers issue fines or suspensions instead. Earlier this year the New York City Department of Education (DOE) identified sixteen teachers, who engaged in inappropriate sexual conduct with students and were then able to keep their jobs due to hearing officer decisions. The offenses committed in these cases included: inappropriate touching, requesting nude pictures of underage teens, inappropriate sexual language and sexual relationships. Rather than ordering their termination, hearing officers made factual findings that the teacher's behavior was inappropriate, but their behavior did not rise to the level of termination. Instead hearing officer's issued fines and/or suspensions and allowed them to return to the classroom. While the DOE has enacted several personnel policy reforms to enhance protections against students, the Chancellor must be given the authority to ensure appropriate actions are taken and safeguards are in place to protect our students from individuals who commit acts of inappropriate sexual conduct against students. Accordingly, the Mayor urges the earliest possible favorable consideration of this proposal by the Legislature. EFFECTIVE DATE: Immediately, with provisions.
S T A T E O F N E W Y O R K
7497 I N SENATE May 29, 2012
Introduced by Sen. SALAND -- (at request of the NYC Education (see sed)) -- read twice and ordered printed, and when printed to be committed to the Committee on Education AN ACT to amend the education law, in relation to discipline for inap propriate sexual conduct THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative intent. School employees hold important posi tions in our communities, not only as educators, but often as mentors and advisors. They are professionally and personally placed in a posi tion of trust. The vast majority of educators are conscientious and talented and should be credited with a significant part of the overall success of our youth. They play an integral role in both the child's life, as well as the community as a whole; which makes a violation of this position of trust even more pronounced. To that end, reports of cases of inappropriate sexual conduct between educators and students have increased. At times, this behavior involves an educator with a student in a continuum of inappropriate behavior that is intended to create and advance an intimate or sexual relationship with the student. These tragic and heinous cases often result in life-long harm to the student's physical, psychological and educational well-being. Given the serious consequences of these actions, it imperative that the discipli nary procedures related to this type of misconduct are congruent with the egregiousness of the behavior. Greater protection is needed to more effectively deal with inappropriate sexual conduct by a small minority of school employees to help facilitate a safer environment for our students, target inappropriate behavior, and preserve the integrity of our educational system.
S 2. Paragraph a of subdivision 2 of section 3020-a of the education law, as amended by section 1 of part B of chapter 57 of the laws of 2012, is amended to read as follows:
a. Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof. Within five days after receipt of charges, the employing board, in exec EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD16061-01-2
S. 7497 2 utive session, shall determine, by a vote of a majority of all the members of such board, whether probable cause exists to bring a disci plinary proceeding against an employee pursuant to this section. If such determination is affirmative, a written statement specifying (i) the charges in detail, (ii) ANY OF THE CHARGES THAT HAVE BEEN DESIGNATED AS INVOLVING INAPPROPRIATE SEXUAL CONDUCT, AS DEFINED IN SUBDIVISION SIX OF THIS SECTION; (III) the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and [
(iii)] (IV) the employee's rights under this section, shall be immediately forwarded to the accused employee by certified or regis tered mail, return receipt requested or by personal delivery to the employee.
S 3. Paragraph b of subdivision 2 of section 3020-a of the education law, as amended by section 1 of part B of chapter 57 of the laws of 2012, is amended to read as follows:
b. The employee may be suspended pending a hearing on the charges and the final determination thereof. The suspension shall be with pay, except the employee may be suspended without pay if (I) the employee has entered a guilty plea to or has been convicted of a felony crime concerning the criminal sale or possession of a controlled substance, a precursor of a controlled substance, or drug paraphernalia as defined in article two hundred twenty or two hundred twenty-one of the penal law[
;], or a felony crime involving the physical abuse of a minor or student; OR (II) PURSUANT TO PARAGRAPH E OF THIS SUBDIVISION, A HEARING OFFICER HAS FOUND PROBABLE CAUSE THAT THE EMPLOYEE HAS COMMITTED INAP PROPRIATE SEXUAL CONDUCT AS DEFINED IN THIS SECTION. The employee shall be terminated without a hearing, as provided for in this section, upon conviction of a sex offense, as defined in subparagraph two of paragraph b of subdivision seven-a of section three hundred five of this chapter. To the extent this section applies to an employee acting as a school administrator or supervisor, as defined in subparagraph three of para graph b of subdivision seven-b of section three hundred five of this chapter, such employee shall be terminated without a hearing, as provided for in this section, upon conviction of a felony offense defined in subparagraph two of paragraph b of subdivision seven-b of section three hundred five of this chapter.
S 4. Subdivision 2 of section 3020-a of the education law is amended by adding a new paragraph e to read as follows:
E. WHERE THE EMPLOYEE IS CHARGED BY CRIMINAL COMPLAINT OR INDICTMENT WITH CRIMINAL CONDUCT UNDER ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW AGAINST A STUDENT OR MINOR OR WHERE THE EMPLOYING BOARD HAS FILED A CHARGE OF INAPPROPRIATE SEXUAL CONDUCT AGAINST THE EMPLOYEE, THE EMPLOY ING BOARD MAY REQUEST A PROBABLE CAUSE HEARING BEFORE A HEARING OFFICER. (I) WHERE A CRIMINAL COMPLAINT OR INDICTMENT HAS BEEN FILED CHARGING THE EMPLOYEE WITH CRIMINAL CONDUCT UNDER ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW AGAINST A STUDENT OR MINOR, THE PROBABLE CAUSE HEARING SHALL TAKE PLACE WITHIN FIFTEEN DAYS OF THE FILING OF SUCH CRIMINAL COMPLAINT OR INDICTMENT, AND SUCH CRIMINAL COMPLAINT OR INDICTMENT SHALL BE SUFFICIENT TO ESTABLISH PROBABLE CAUSE WITHOUT FURTHER TESTIMONY. (II) IN ALL OTHER CASES, WHERE THE EMPLOYING BOARD HAS FILED A CHARGE OF INAPPROPRIATE SEXUAL CONDUCT, SUCH PROBABLE CAUSE HEARING SHALL TAKE PLACE WITHIN TEN DAYS OF THE EMPLOYEE'S REQUEST FOR A HEARING ON THE CHARGES AND SHALL NOT EXCEED ONE HALF DAY IN LENGTH. FOR PURPOSES OF THIS PARAGRAPH, PROBABLE CAUSE SHALL BE FOUND TO EXIST WHERE EVIDENCE OR INFORMATION WHICH APPEARS RELIABLE DISCLOSES FACTS AND CIRCUMSTANCES S. 7497 3 MAKING IT LIKELY THAT INAPPROPRIATE SEXUAL CONDUCT IN FACT OCCURRED AND THE EMPLOYEE CHARGED COMMITTED THE CONDUCT. TO ESTABLISH PROBABLE CAUSE, AN INVESTIGATOR OR SCHOOL DISTRICT OFFICIAL SHALL BE PRESENT AND SHALL TESTIFY AT THE PROBABLE CAUSE HEARING. THE EMPLOYING BOARD MAY ALSO BE REQUIRED TO PRODUCE WRITTEN STATEMENTS FROM THE VICTIM OR WITNESSES, IF ANY. THE EMPLOYEE SHALL HAVE AN OPPORTUNITY TO RESPOND ORALLY TO THE OFFER OF PROOF. THE HEARING OFFICER MAY ASK RELEVANT QUESTIONS OR MAKE FURTHER INQUIRY AT THE REQUEST OF THE EMPLOYEE. THE HEARING SHALL NOT REQUIRE TESTIMONY OF OTHER WITNESSES NOR SHALL CROSS-EXAMINATION BE PERMITTED. (III) SHOULD THE EMPLOYING BOARD MEET ITS BURDEN OF ESTABLISHING PROB ABLE CAUSE OF INAPPROPRIATE SEXUAL CONDUCT, THE EMPLOYEE SHALL REMAIN SUSPENDED WITHOUT PAY DURING THE PENDENCY OF THE DISCIPLINARY ACTION, AND THE FINAL HEARING ON THE CHARGES SHALL BE COMPLETED WITHIN THE TIME FRAME SET FORTH IN SUBPARAGRAPH (VI) OF PARAGRAPH C OF SUBDIVISION THREE OF THIS SECTION.
S 5. Subdivisions 4 and 5 of section 3020-a of the education law, as amended by section 1 of part B of chapter 57 of the laws of 2012, are amended to read as follows:
4. Post hearing procedures. a. [
The] (I) IN ANY CASE THAT INCLUDES A CHARGE DESIGNATED BY THE EMPLOYING BOARD AS INVOLVING INAPPROPRIATE SEXUAL CONDUCT THE HEARING OFFICER SHALL PREPARE A DECISION ON ALL CHARGES WITHIN THIRTY DAYS OF THE LAST DAY OF THE FINAL HEARING, OR IN THE CASE OF AN EXPEDITED HEARING WITHIN TEN DAYS OF THE SUCH EXPEDITED HEARING, AND SHALL FORWARD A COPY THEREOF TO THE COMMISSIONER WHO SHALL IMMEDIATELY FORWARD COPIES OF THE DECISION TO THE EMPLOYEE AND TO THE CLERK OR SECRETARY OF THE EMPLOYING BOARD. THE DECISION SHALL INCLUDE THE HEARING OFFICER'S FINDINGS OF FACT ON EACH CHARGE, AND HIS OR HER CONCLUSIONS WITH REGARD TO EACH CHARGE BASED ON SAID FINDINGS, AND SHALL STATE WHAT PENALTY OR OTHER ACTION, SHOULD BE TAKEN. IN THOSE CASES WHERE A HEARING OFFICER FINDS THAT INAPPROPRIATE SEXUAL CONDUCT HAS OCCURRED THE DECISION SHALL INCLUDE A PENALTY OF TERMINATION UNLESS THE HEARING OFFICER, IN WRITING, IDENTIFIES SPECIFIC REASONS FOR INCLUDING A LESSER PENALTY OR OTHER ACTION. (II) THE HEARING OFFICER SHALL INDICATE IN THE DECISION WHETHER ANY OF THE CHARGES BROUGHT BY THE EMPLOYING BOARD SHALL BE FOUND FRIVOLOUS AS DEFINED IN SECTION EIGHTY-THREE HUNDRED THREE-A OF THE CIVIL PRACTICE LAW AND RULES. IF THE HEARING OFFICER'S DECISION IS THAT ALL OF THE CHARGES BROUGHT AGAINST THE EMPLOYEE BE FOUND FRIVOLOUS, THE HEARING OFFICER SHALL RECOMMEND THAT THE EMPLOYING BOARD REIMBURSE THE DEPART MENT THE REASONABLE COSTS SAID DEPARTMENT INCURRED AS A RESULT OF THE PROCEEDING AND REIMBURSE THE EMPLOYEE THE REASONABLE COSTS, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS' FEES, THE EMPLOYEE INCURRED IN DEFENDING THE CHARGES. IF THE HEARING OFFICER'S DECISION IS THAT SOME BUT NOT ALL OF THE CHARGES BROUGHT AGAINST THE EMPLOYEE BE FOUND FRIVO LOUS, THE HEARING OFFICER SHALL RECOMMEND THAT THE EMPLOYING BOARD REIM BURSE THE DEPARTMENT A PORTION OF THE REASONABLE COSTS SAID DEPARTMENT INCURRED AS A RESULT OF THE PROCEEDING AND REIMBURSE THE EMPLOYEE A PORTION OF THE REASONABLE COSTS, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS' FEES, THE EMPLOYEE INCURRED IN DEFENDING THE CHARGES. (III) FOLLOWING RECEIPT OF THE HEARING OFFICER'S DECISION, THE EMPLOY ING BOARD SHALL RENDER A WRITTEN DECISION ADOPTING, MODIFYING OR REJECT ING THE HEARING OFFICER'S DECISION, INCLUDING FINDINGS OF FACT, CONCLU SIONS AND PENALTIES, IN WHOLE OR IN PART. IF THE EMPLOYING BOARD DOES NOT ADOPT THE DECISION OF THE HEARING OFFICER, THE EMPLOYING BOARD SHALL EXPLAIN ITS REASONING IN THE WRITTEN DECISION. THE EMPLOYING BOARD SHALL S. 7497 4 FORTHWITH FORWARD A COPY THEREOF TO THE COMMISSIONER WHO SHALL IMME DIATELY FORWARD A COPY OF THE DECISION TO THE EMPLOYEE. IN THOSE CASES WHERE A PENALTY IS IMPOSED FOR INAPPROPRIATE SEXUAL CONDUCT, SUCH PENAL TY SHALL BE TERMINATION UNLESS THE EMPLOYING BOARD, IN WRITING, IDENTI FIES SPECIFIC REASONS FOR IMPOSING A LESSER PENALTY OR OTHER ACTION. IN THOSE CASES WHERE A PENALTY OTHER THAN TERMINATION IS IMPOSED, SUCH PENALTY MAY BE ANY PENALTY AS SET FORTH IN PARAGRAPH A-1 OF THIS SUBDI VISION, AND IN ADDITION TO OR IN LIEU OF SUCH PENALTIES THE EMPLOYING BOARD MAY IMPOSE REMEDIAL ACTIONS AS SET FORTH IN PARAGRAPH A-1 OF THIS SUBDIVISION. (IV) WITHIN FIFTEEN DAYS OF ISSUANCE OF THE EMPLOYING BOARD'S DECISION THE EMPLOYING BOARD SHALL IMPLEMENT THE DECISION. IF THE DECISION IS A DISMISSAL OF ALL CHARGES OR AN ACQUITTAL THE EMPLOYEE SHALL BE RESTORED TO HIS OR HER POSITION AND RECEIVE BACK PAY WITH INTEREST FOR THE ENTIRE PERIOD OF SUSPENSION WITHOUT PAY AND THE CHARGES EXPUNGED FROM THE EMPLOYMENT RECORD. (V) THE EMPLOYING BOARD SHALL ALSO MAKE A WRITTEN DETERMINATION WITH RESPECT TO ANY RECOMMENDATION OF THE HEARING OFFICER THAT ANY CHARGES BE FOUND FRIVOLOUS AND THAT REIMBURSEMENT SHOULD BE MADE TO THE DEPARTMENT AND THE EMPLOYEE WITH RESPECT TO REASONABLE COSTS INCURRED AS A RESULT OF SUCH CHARGES. (VI) NOT LATER THAN TEN DAYS AFTER RECEIPT OF THE EMPLOYING BOARD'S DECISION, THE EMPLOYEE MAY MAKE AN APPLICATION TO THE NEW YORK STATE SUPREME COURT TO VACATE OR MODIFY THE DECISION OF THE EMPLOYING BOARD PURSUANT TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES. THE COURT'S REVIEW SHALL BE LIMITED TO THE GROUNDS SET FORTH IN SUCH SECTION. THE EMPLOYING BOARD'S DETERMINATION SHALL BE DEEMED TO BE FINAL FOR THE PURPOSE OF SUCH PROCEEDING. IF THE EMPLOYING BOARD DETERMINES TO REJECT A RECOMMENDATION BY A HEARING OFFICER THAT ANY CHARGE BE FOUND FRIVOLOUS, AND SUCH DETERMINATION IS FOUND IN SUCH A PROCEEDING TO BE ARBITRARY AND CAPRICIOUS, THE EMPLOYER SHALL BE REQUIRED TO REIMBURSE THE EMPLOYEE FOR THE REASONABLE COSTS, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS' FEES, THE EMPLOYEE INCURRED IN DEFENDING CHARGES FOUND TO BE FRIVOLOUS, AND THE CHARGES EXPUNGED FROM THE EMPLOYMENT RECORD. (VII) IN NO CASE SHALL THE FILING OR THE PENDENCY OF AN APPEAL DELAY THE IMPLEMENTATION OF THE DECISION OF THE EMPLOYING BOARD UNLESS A COURT ISSUES A STAY OF THE PROCEEDINGS PURSUANT TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES. (VIII) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, RULE OR REGULATION TO THE CONTRARY, ALL COLLECTIVE BARGAINING AGREEMENTS APPLICABLE TO TEACHERS OR BUILDING PRINCIPALS ENTERED INTO AFTER JULY FIRST, TWO THOU SAND TWELVE SHALL BE CONSISTENT WITH REQUIREMENTS OF THIS PARAGRAPH, AND ANY PROVISION TO THE CONTRARY SHALL BE NULL AND VOID AS AGAINST PUBLIC POLICY. A-1. IN ALL OTHER CASES, THE hearing officer shall render a written decision within thirty days of the last day of the final hearing, or in the case of an expedited hearing within ten days of such expedited hear ing, and shall forward a copy thereof to the commissioner who shall immediately forward copies of the decision to the employee and to the clerk or secretary of the employing board. The written decision shall include the hearing officer's findings of fact on each charge, AND his or her conclusions with regard to each charge based on said findings and shall state what penalty or other action, if any, shall be taken by the employing board. At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall S. 7497 5 consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including but not limited to:
remediation, peer intervention or an employee assistance plan. In those cases where a penalty is imposed, such penalty may be a written repri mand, a fine, suspension for a fixed time without pay, or dismissal. In addition to or in lieu of the aforementioned penalties, the hearing officer, where he or she deems appropriate, may impose upon the employee remedial action including but not limited to leaves of absence with or without pay, continuing education and/or study, a requirement that the employee seek counseling or medical treatment or that the employee engage in any other remedial or combination of remedial actions. [
b.] Within fifteen days of receipt of the hearing officer's decision the employing board shall implement the decision. B. If the employee is acquitted he or she shall be restored to his or her position with full pay for any period of suspension without pay and the charges expunged from the employment record. If an employee who was convicted of a felony crime specified in paragraph b of subdivision two of this section, has said conviction reversed, the employee, upon appli cation, shall be entitled to have his or her pay and other emoluments restored, for the period from the date of his or her suspension to the date of the decision. c. The hearing officer shall indicate in the decision OF ANY CASE SUBJECT TO PARAGRAPH A-1 OF THIS SUBDIVISION whether any of the charges brought by the employing board were frivolous as defined in section eighty-three hundred three-a of the civil practice law and rules. If the hearing officer finds that all of the charges brought against the employee were frivolous, the hearing officer shall order the employing board to reimburse the department the reasonable costs said department incurred as a result of the proceeding and to reimburse the employee the reasonable costs, including but not limited to reasonable attorneys' fees, the employee incurred in defending the charges. If the hearing officer finds that some but not all of the charges brought against the employee were frivolous, the hearing officer shall order the employing board to reimburse the department a portion, in the discretion of the hearing officer, of the reasonable costs said department incurred as a result of the proceeding and to reimburse the employee a portion, in the discretion of the hearing officer, of the reasonable costs, including but not limited to reasonable attorneys' fees, the employee incurred in defending the charges. 5. Appeal. a. Not later than ten days after receipt of the hearing officer's decision PURSUANT TO PARAGRAPH A-1 OF SUBDIVISION FOUR OF THIS SECTION, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seventy-five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding. b. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.
Section 3020-a of the education law is amended by adding a new subdivision 6 to read as follows:
6. A. "INAPPROPRIATE SEXUAL CONDUCT" SHALL MEAN:
(I) ANY CONDUCT BETWEEN AN EMPLOYEE AND A STUDENT WHETHER VERBAL, IN PERSON, IN WRITING OR BY ELECTRONIC MEANS, WHETHER IT OCCURS ON SCHOOL GROUNDS, OR AT A SCHOOL FUNCTION AS DEFINED IN SECTION TWENTY-EIGHT S. 7497 6 HUNDRED ONE OF THIS CHAPTER, OR NOT ON SCHOOL GROUNDS, OR NOT A SCHOOL FUNCTION, THAT IS INTENDED TO INITIATE, CREATE, FOSTER OR ADVANCE AN INTIMATE OR A SEXUAL RELATIONSHIP BY AN EMPLOYEE WITH A STUDENT, INCLUD ING BUT NOT LIMITED TO:
(1) ANY SEXUAL EXPRESSION, SEXUAL CONDUCT, CONTACT, TOUCHING, WITHOUT A LEGITIMATE PEDAGOGICAL PURPOSE, INCLUDING BUT NOT LIMITED TO SEXUALLY SUGGESTIVE COMMENTS AND DISCUSSIONS OF SEXUAL ACTS; (2) EXPOSING A STUDENT TO REPRESENTATIONS, INCLUDING BUT NOT LIMITED TO DRAWINGS OR PHOTOGRAPHS, OF A SEXUAL NATURE, WHETHER VERBAL, WRITTEN, ELECTRONIC OR PHYSICAL, WITHOUT A LEGITIMATE PEDAGOGICAL PURPOSE; (3) PROVIDING OF A GIFT TO A STUDENT; (4) ANY ACTION THAT COULD REASONABLY BE INTERPRETED AS SOLICITING, OR INTENDING TO FORM, AN INTIMATE OR SEXUAL RELATIONSHIP OR SEXUAL ACTIV ITY, INCLUDING BUT NOT LIMITED TO MEETINGS OF A NON-PEDAGOGICAL NATURE WITHOUT SCHOOL ADMINISTRATION AND PARENTAL NOTIFICATION AND PERMISSION; (II) SEXUAL INTERCOURSE. ANY ACT OF SEXUAL PENETRATION, HOWEVER SLIGHT, OF A STUDENT'S ANAL, GENITAL, OR ORAL OPENING WITH ANY OBJECT OR BODY PART; (III) PUBLISHING, RECREATING OR REPRODUCING IMAGES OF A SEXUAL ACT INVOLVING A STUDENT; (IV) ANY ACT OF PUBLIC LEWDNESS, AS DEFINED IN SECTION 245.00 OF THE PENAL LAW, OR EXPOSURE, AS DEFINED IN SECTION 245.01 OF THE PENAL LAW, IN A PLACE WHERE A STUDENT COULD VIEW SUCH ACT OF PUBLIC LEWDNESS OR EXPOSURE; (V) EXPOSING A STUDENT TO PORNOGRAPHIC MATERIAL; (VI) POSSESSION OR USE OF CHILD PORNOGRAPHY; (VII) SERIOUS OR REPEATED VERBAL ABUSE OF A SEXUAL NATURE; (VIII) INTENTIONAL OR REPEATED OBSERVING OR VIEWING OF THE SEXUAL OR INTIMATE PARTS OF A STUDENT OR UNDER THE CLOTHING WORN BY A STUDENT, OR ANY ACTION INVOLVING THE USE OF AN IMAGING DEVICE THAT WOULD CONSTITUTE CRIMINAL CONDUCT AS DEFINED UNDER SECTIONS 250.40, 250.45 OR 250.50 OF THE PENAL LAW; (IX) INDUCING OR ATTEMPTING TO INDUCE INCAPACITATION OR IMPAIRMENT OF A STUDENT FOR THE PURPOSE OF HAVING SEXUAL INTERCOURSE, SEXUAL CONTACT OR FOR THE PURPOSE OF CREATING PORNOGRAPHIC IMAGES OR MATERIALS, REGARD LESS OF WHETHER SEXUAL ACTIVITY ACTUALLY TAKES PLACE; (X) ANY ACTION THAT WOULD CONSTITUTE CRIMINAL CONDUCT UNDER ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW AGAINST A STUDENT OR MINOR; (XI) ANY OTHER ACTION OR CONDUCT DESIGNATED BY THE COMMISSIONER; B. FOR THE PURPOSES OF THIS SUBDIVISION "STUDENT" SHALL MEAN A STUDENT OR A MINOR WHO IS NOT A STUDENT; C. "INAPPROPRIATE SEXUAL CONDUCT" SHALL NOT BE CONSTRUED TO INCLUDE LEGITIMATE NONSEXUAL TOUCHING OR OTHER NONSEXUAL CONDUCT.
S 7. This act shall take effect immediately and shall apply with respect to cases initiated by the filing of charges on or after such date.